142 Minn. 181 | Minn. | 1919
In 1907 the Minnesota legislature fixed maximum rates of freight to be charged by railroad companies within this state.
From May 31, 1907, to July 21, 1913, the establishment of the rates
1. Plaintiff makes the claim that chapter 195, p. 220, Laws 1909 (G. S. 1913, §§ 4307-4309), which authorized the attorney general to sue for the recovery of excessive freight charged during the pendency of the injunction, and permitted shippers to participate in the funds recovered on presentation of their claims to the state superseded the statute of limitations. We do not sustain this contention. The statute, whether valid or not, has no application to a suit brought by a shipper, nor to the time within which such a suit shall be brought.
2. Plaintiff contends that the bar of the statute of limitations was removed by a new promise to pay. A claim may be revived by a new promise "contained in some writing signed by the party to be charged thereby.” G. S. 1913, § 7712. And where the new promise is made before the claim is outlawed, the period of limitation thereafter runs from the date of the new promise. 25 Cyc. 1328; Dern v. Olsen, 18 Idaho, 358, 110 Pac. 164, L.R.A. 1915B, 1016, Ann. Cas. 1912A, 1; Pickering v. Frink, 62 N. H. 342; Carlton v. Coffin, 27 Vt. 496.
The act of 1909 provided that within 60 days after the judicial proceedings were ended, unless said rates should be found to be unlawful, every common carrier should pay to the Bailroad and Warehouse Commission for the benefit of the parties entitled thereto "all sums so
This letter, construed in the light of the language of the act of 1909 to which it refers, may fairly be regarded as a promise to pay all sums charged and collected on the business to which such rates apply in excess of the rates so prescribed.
The question is, does this constitute a new promise sufficient to remove the bar of the statute of limitations. The trial court held not. In our opinion this was error.
One reason urged in support of the court’s ruling is that the writing does not identify the plaintiff’s claims and promise to pay them. It
A promise to pay “every cent he owed Mm,” it is held, sufficiently identifies the debt sued on. O’Hara v. Murphy, 196 Ill. 599, 63 N. E. 1081. It is not necessary that the new promise should state the amount of the debt. Conway’s Exr. v. Reyburn’s Exrs. 22 Ark. 290; First Nat. Bank v. Woodman, 93 Iowa, 668, 62 N. W. 28, 57 Am. St. 287; Wetz v. Geffe, 71 Ill. App. 313; Kincaid v. Archibald, 73 N. Y. 189, 192; Abrahams v. Swann, 18 W. Va. 274, 280, 41 Am. Rep. 692, nor even that the amount should have been fixed. “We owe you for three years salary” is held sufficient though the salary had never been fixed. Schmidt v. Pfau, 114 Ill. 494, 504, 2 N. E. 522, 527. An admission of some balance due, the amount to be ascertained by arbitration, is held sufficient. Cheslyn v. Dalby, 10 L. J. Exch. 21. A promise to pay if the debt is established, is held a good new promise. Stanton v. Stanton, 2 N. H. 425; Shaw v. Lambert, 14 App. Div. 265, 43 N. Y. Supp. 470; Read v. Wilkinson, 20 Fed. Cas. 359, No. 11,611; Heylin v. Hastings, 12 Mod. 223. So is a promise to pay if the debtor cannot prove payment. Richmond v. Fugua, 33 N. C. 445; Sweet v. Hubbard, 36 Vt. 294; Sothoron v. Hardy, 8 Gill & J. 133. And a prediction that nothing will be found due, it is held, does not vitiate the promise. 25 Cyc. 1343; Bliss v. Allard, 49 Vt. 350; Read v. Wilkinson, 20 Fed. Cas. 359, No. 11,611.
A promise to pay all claims of a definite class is, in our opinion, sufficiently definite. The language of the letter “to the public,” promising to pay all claims of the class to which plaintiff’s claims belong, sufficiently identified plaintiff’s claims. This is in accordance with the decision of the Washington supreme court, in Blecher v. Tacoma Eastern R.
3. Respondent contends that the promise to entertain "properly supported” claims and “to make prompt payments thereof” was a conditional promise, and that the condition was not complied with. What is meant by “properly supported” is not very clear. It is “suggested” in the letter that a certain sheet be used in submitting the claims. The letter said the expense bill “should accompany” the claim, but, if it had previously been presented in support of a claim of some kind, then “such reference as is possible should be made so that it may be located.” We are not at all satisfied that there was any purpose to except from this promise any just claim, or to malee the form of proof suggested or any other preliminary proof a condition to payment. Defendant did not so treat its promise. The correspondence in evidence shows that it entertained claims that were not ^supported by preliminary proof.
If it can be said that this is a promise to pay only “properly supported” claims, and, if proper “support” is a condition to the operation of the promise, this does not avail defendant. A conditional promise becomes effectual to remove the bar of the statute on fulfilment of the condition by the creditor or on his readiness to fulfil. 25 Cyc. 1348. See McNab v. Stewart, 12 Minn. 291 (407). After considerable negotiation, defendant’s freight claim agent wrote to plaintiff April 7, 1916, as follows: “We regret exceedingly the fact that you took the time and trouble to furnish us with the sheet showing the amounts actually collected in the various claims presented by you for the reason that we will be unable to handle the claims in question, as shipments moved during the period of 1907, 8 and 9, and for which period all our records have been destroyed.” And on July 25, 1916, defendant’s “Commerce Counsel” wrote: “None of the claims * * * was rejected on the theory that the statute of limitations had run against it. None * * * was rejected on any proof in our possession that such claim is not legitimate. The sole reason for declining each of the claims above referred to, was and is that we were and are unable to verify its correctness. * * * The reason that we were not able to verify them or cheek their regularity lay in the fact that the accounting department records more than six years old have been destroyed.” Surely after this “regret” that
We are of the opinion that the letter "to the public” of June 34, 1913, was sufficient as a new promise and that, it started a new period of ^imitation. It is proper to say that in L. Christian & Co. v. Chicago, St. P. M. & O. Ry. Co. 135 Minn. 45, 159 N. W. 1082, supra, this letter was not called to the attention of the court nor was any new promise pleaded or proved.
Order reversed.